Camaron v. State

• Court: Georgia Court of Appeals
• Writing for the Court: ELDRIDGE.
• Citation: Camaron v. State, 246 Ga. App. 80, 539 S.E.2d 577 (Ga. App. 2000)
• Decision Date: 20 September 2000
• Docket Number: No. A00A2068.,A00A2068.
• Parties: CAMARON v. The STATE.

539 S.E.2d 577

246 Ga. App. 80

CAMARON v. The STATE.

No. A00A2068.

Court of Appeals of Georgia.

September 20, 2000.

John Matteson, Atlanta, for appellant.

Daniel J. Porter, District Attorney, Annette S. Malena, Frank Ilardi, Assistant District Attorneys, for appellee.

ELDRIDGE, Judge.

On January 1, 1998, the defendant hid in a stall in the women's restroom at Lucky Breaks Pool Hall. When the victim came in, the defendant at knifepoint forced her into the stall and to remove her clothes. He attempted unsuccessfully to penetrate her vagina from the rear; fondled her breasts; digitally penetrated her vagina; and finally achieved a partial penile penetration of the victim's vagina. The defendant took all of the victim's clothes except for her socks. The defendant was indicted for kidnapping, rape, aggravated assault, aggravated sexual battery, possession of a knife during the commission of a felony, and sexual battery. On October 25, 1999, the defendant entered a guilty plea to all charges. On March 21, 2000, the trial court sentenced the defendant on kidnaping, rape, aggravated assault, and aggravated sexual battery to twenty years confinement to serve ten concurrently, with the balance probated, five years to serve consecutively for possession of a knife during the commission of a felony, and twelve months concurrent probation for sexual battery.

The defendant moved for the sentence to be imposed as a first offender. However, the trial court imposed a split sentence under the facts and circumstances of the case.

The defendant contends that the trial court erred as a matter of law because of the belief that the defendant was not eligible for first offender status; he contends that the trial court abused its discretion in not considering such provision when imposing sentence. However, there was no evidence that the trial court labored under the mistaken belief of law that the defendant was not eligible for first offender status or that the defendant could not be given the same time to serve in prison as a first offender. Accordingly, we affirm.

1. Defendant's first contention is that the trial court erred "in implicitly finding that [the defendant] having pled guilty to a serious violent felony under OCGA § 17-10-6.1 was precluded from requesting and obtaining [f]irst [o]ffender treatment pursuant to OCGA § 42-8-60." We do not agree.

On March 27, 1998, Ga. L.1998, p. 180, § 2 became effective and prevented a superior court judge from giving first offender status to anyone guilty of a "serious violent felony." OCGA §§ 17-10-6.1(b); 42-8-66. Since these serious violent felonies occurred on January 1, 1998, prior to the passage of the amendment, then the prohibition of the Act had no retroactive application to the defendant to limit the discretion of the trial judge in what sentence to impose. Taylor v. State, 181 Ga.App. 199, 200(2), 351 S.E.2d 723 (1986). Therefore, the trial court had no legal prohibition in imposing a sentence under the First Offender Act. Prior to March 27, 1998, OCGA § 17-10-6.1 did not deprive the trial court of the discretion to impose a sentence for a "serious violent felony" as a first offender. See Fleming v. State, 271 Ga. 587, 523 S.E.2d 315 (1999); Burleson v. State, 242 Ga.App. 217, 529 S.E.2d 228 (2000); State v. Allmond, 225 Ga.App. 509, 484 S.E.2d 306 (1997).

A sentence imposed under OCGA § 42-8-60 upon a defendant as a first offender lies entirely within the discretion of the trial court. Moore v. State, 236 Ga.App. 889, 890, 514 S.E.2d 73 (1999); Hardman v. Hardman, 185 Ga.App. 519, 520(4), 364 S.E.2d 645 (1988), overruled on other grounds, Pender v. Witcher, 196 Ga.App. 856, 397 S.E.2d 193 (1990); Welborn v. State, 166 Ga.App. 214, 215, 303 S.E.2d 755 (1983). The initial sentence or a sentence upon revocation of the first offender status is within the sound discretion of the trial court and is limited only by the statutory guidelines. Mohammed v. State, 226 Ga.App. 387, 388-389, 486 S.E.2d 652 (1997), rev'd in part on other grounds, Bliss v. State, 244 Ga.App. 160, 535 S.E.2d 251 (2000); Griffin v. State, 163 Ga.App. 871(3), 295 S.E.2d 863 (1982); Austin v. State, 162 Ga.App. 709, 710, 293 S.E.2d 10 (1982). Whether to grant probation as to all or part of any sentence is discretionary.

The trial court made no written ruling or statement on the record that indicated that the trial court believed that first offender status was not available to the defendant or what could be construed as a refusal to exercise discretion regarding first offender status. See Jones v. State, 208 Ga.App. 472, 473, 431 S.E.2d 136 (1993). The defendant has failed to establish this alleged error upon the record as to a belief of the trial judge in a lack of discretion. Flanigan v. State, 238 Ga.App. 296(1), 517 S.E.2d 569 (1999). Absent evidence of record or evidence in the record demonstrating error, the trial court is presumed to have acted properly in imposing sentence, because the presumption of correctness overcomes any inference to the contrary absent evidence to support the inference. See Echols v. State, 231 Ga.App. 501, 502, 498 S.E.2d 66 (1998); Hamrick v. State, 197 Ga.App. 89, 91-92(4), 397 S.E.2d 503 (1990).

2. Defendant's second contention is that the trial court erred in refusing to consider first offender treatment for the defendant as an exercise of discretion. We do not agree.

Refusal to consider first offender treatment as part of a sentencing formula or policy by automatic denial constitutes an abuse of discretion and constitutes reversible error. Jones v. State, supra at 473, 431 S.E.2d 136. However, there must be a clear statement in the record...